Broadcast flag also coming to HD Radio

First television, now radio: with digital radio set to become a reality, the …

Open letters have been flying back and forth between the RIAA and the National Association of Broadcasters (NAB) over the issue of protecting content on HD Radio. HD Radio, like satellite radio, will provide digital, static-free broadcasts of your favorite radio stations, and will do so in near-CD quality (actually a compressed 96 kbps signal for FM, 32 kbps for AM). The very thought of beaming unencrypted 96 kbps transmissions of The White Stripes into people's homes is enough to work the RIAA into a lather. The issue, they claim, is piracy: who will buy the CD when they can simply record a pristine digital copy of a song off the radio? (Answer: anyone who wants to hear something besides the 60 songs served up by Clear Channel.)

One of the RIAA's proposals for safeguarding content on HD Radio is encryption at the source, which means that the digital segment of radio transmissions would be scrambled and unable to be heard without special equipment. As you might imagine, the National Association of Broadcasters is not thrilled about the idea. Many of their members have already installed expensive equipment in preparation for the switch to digital broadcasting, and the first HD Radio sets are already on the market. Forcing broadcasters to encrypt their transmission at the source would render all of this equipment obsolete. Furthermore, the NAB doesn't believe that HD Radio is quite the boon to digital pirates that the RIAA says it is. In an open letter to his counterpart at the RIAA, NAB president David Rehr asserts that digital radio will have little effect on piracy.

"As a matter of initial discussion, NAB questions the degree to which HD Radio threatens copyright or will facilitate unauthorized, digital distribution of sound recordings. Those desiring to obtain and listen to pure, uninterrupted performances of sound recording in lieu of radio already have an abundant number of means to do so. Peer-to-peer file sharing and the hours of uninterrupted music that can be stored on CDs and discs are but a few such means. iPod uploads and digital music on the Internet would seem to present much larger and more immediate threats to copyright holders."

Rehr also points out that no free, over-the-air broadcast system (analog or digital) has ever been required to encrypt its transmissions, and that being forced to do so could set back the adoption of HD Radio by years.

So, a clear victory for common sense and consumer's rights? Not quite. While rejecting the idea of encryption at the source, Rehr ends the letter by making a proposal. He suggests that the RIAA and the NAB get together to agree on details of a broadcast flag that would allow radio stations to control what listeners do with their content. Mitch Bainwol, president of the RIAA, could not be more pleased about the idea. In a letter back to Rehr, he says:

"The RIAA has always been agnostic as to the technological method of protecting content contained in digital broadcasts. As stated in our FCC filing, while we agree with many in the information technology industry that encryption at the source provides robust protection, a broadcast flag technology similar to the solution you support in the video context would be adequate to meet our needs. We understand that for the reasons you mention in your letter, encryption at the source is not a technological solution that provides a viable option at this point and therefore support working with you to implement a broadcast flag solution for digital over-the-air radio."

By making their initial suggestion (encryption at the source) a draconian one, the RIAA's love for the broadcast flag idea now looks like a reasonable compromise. With both the RIAA and the NAB on board, it's looking increasingly certain that the broadcast flag will become a reality for HD Radio. What does this mean for you? Back in November we pointed out that the RIAA was pushing the HD Radio Content Protection Act of 2005 (HDRCPA) in Congress, and that the legislation gives us a pretty good idea of how the RIAA would want such a broadcast flag to function. Under the law, equipment capable of receiving HD Radio would be required to abide by certain limitations, among them:

(A) permit recording only of specific programs, channels or time periods as selected by the user in increments of no less than thirty minutes duration, where no more than 50 hours of recorded material is stored at any one time, and recorded material is deleted or otherwise made inaccessible on a first-in, first-out basis;

(B) do not permit recording or playback based on information concerning specific sound recordings, artists, genres or other user preferences;

(C) do not permit the automated disaggregation of the copyrighted material contained in any recording of a transmission program;

(D) effectively prevent access to the recorded material other than as described in this paragraph; and

(E) do not permit the redistribution, retransmission or other exporting of recorded material from the device by digital outputs or removable media.

Digital transmission of television and radio will bring us better picture and sound, but it will also bring the RIAA's idea of fair use into our living rooms. Is this the sort of houseguest we want?